The National Labor Relations Act at the Crossroads

Fordham Law Review

Volume 56 | Issue 2 Article 3

1987

The National Labor Relations Act at theCrossroadsEdward Silver

Joan McAvoy

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Recommended CitationEdward Silver and Joan McAvoy, The National Labor Relations Act at the Crossroads, 56 Fordham L. Rev. 181 (1987).Available at: http://ir.lawnet.fordham.edu/flr/vol56/iss2/3

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THE NATIONAL LABOR RELATIONS ACTAT THE CROSSROADS

EDWARD SILVER*JOAN MCAVOY**

[l]t would seem that the case for abolishing the NLRB cannot beevaded.

-Professor Sylvestre Petro, 1953t

[A]n employer bent upon opposing unionization is not even inconve-nienced by the present law in carrying out his anti-union activities.

-AFL-CIO Committee on theEvolution of Work, 19851

INTRODUCTION

D ESPITE such criticism, the National Labor Relations Act (the"Act" or "NLRA")1 has provided the basic framework governing

labor management relations in the private sector for over fifty years.Periodically the subject of criticism3 , the Act and the National LaborRelations Board ("NLRB" or the "Board") today are again the target ofstrong attack.4 Nonetheless, while some changes may be necessary, theAct and the Board should be retained. Both have survived for over half acentury, and it is now likely that their centennial will be celebrated ratherthan their demise.

The NLRA5 is the "starting point for contemporary American laborlaw." 6 Enacted in 1935 to promote unions and collective bargaining,"

* Chairman, Proskauer Rose Goetz & Mendelsohn, New York, New York; B.S. St.John's University, 1941; LL.B. with distinction, Cornell University, 1948; Member, NewYork City Board of Collective Bargaining, 1968-; Director, American Arbitration Asso-ciation, 1972-.

** Associate, Proskauer Rose Goetz & Mendelsohn, Washington, D.C.; B.A. magnacum laude, Smith College, 1960; J.D. New York University, 1964.

t Petro, Amending the Taft-Hartley Act, 4 Lab. L.J. 67, 156 (1953).1 AFL-CIO, Committee on the Evolution of Work, The Changing Situation of

Workers and Their Unions 21 (1985).1. 29 U.S.C. §§ 151-169 (1982).2. Congress passed the National Labor Relations Act in 1935. National Labor Rela-

tions (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C.§§ 151-169 (1982 & Supp. III 1985)).

3. See, e-g., Elkouri, Employer Free Speech, 4 Lab. L.J. 78, 84 (1953) ("Section 8(c)[of the NLRA] was not necessary as enacted, and it is doubtful whether any employer'free speech' provision was warranted at all."); Rose, Is the NLRB Tampering With Free-dom of Speech?, 15 U. Pitt. L. Rev. 462, 491 (1954) ("To assume that the employer isinherently evil, as the Board has.., is a demonstration of vicious class-hatred which ismost untrue.... ").

4. See infra text accompanying notes 33-40.5. National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as

amended at 29 U.S.C. §§ 151-169 (1982 & Supp. III 1985)).6. 1 The Developing Labor Law 30 (C. Morris 2d ed. 1983).

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this Act followed "a procession of bloody and costly strikes"' resultingfrom the failure of the previously enacted National Industrial RecoveryAct ("NIRA"),9 which had relied principally on persuasion and volun-tary compliance."

Since 1935, Congress has amended the NLRA several times to reflectchanges in national labor policy and correct perceived abuses of the sys-tem. In 1947, the Taft-Hartley Amendments 1 shifted the focus of theAct to balancing the power between labor and management and protect-ing the rights of employees. Numerous significant changes were made, 12

notwithstanding the strong opposition of labor. 3 In 1959, Congress en-acted the Landrum-Griffin Amendments 4 to correct various abuses byunions and management uncovered by a Senate committee through in-vestigation and hearings.15 In 1974, the most recent group of amend-

7. The Act gave workers three significant rights considered essential to equalizingbargaining power between labor and management: (1) the right to organize; (2) the rightto bargain collectively; and (3) the right to engage in concerted activities such as strikesand picketing. See National Labor Relations (Wagner) Act, ch. 372, § 7, 49 Stat. 449,452 (1935), reprinted in 2 NLRB, Legislative History of the National Labor RelationsAct, 1935, at 3273 (1985) [hereinafter "Legislative History NLRA"].

8. 79 Cong. Rec. 2371 (1935) (Senator Wagner commenting on § 7(a)), reprinted in1 Legislative History NLRA, supra note 7, at 1312.

9. National Industrial Recovery Act, ch. 90, 48 Stat. 195 (1933) (repealed 1935).10. 79 Cong. Rec. 2368-70 (1935), reprinted in 1 Legislative History NLRA, supra

note 7, at 1311-12.11. Labor Management Relations (Taft-Hartley) Act, ch. 120, 61 Stat. 136 (1947)

(codified as amended at 29 U.S.C. §§ 141-188 (1982 & Supp. III 1985)).12. Section 7 was amended to give employees the right to refrain from original § 7

activities, with one limited exception. Compare Taft-Hartley Act, ch. 120, § 7, 61 Stat. at140 (employees may refrain from collective activities although they may be required tojoin a labor organization as a condition of employment), with Wagner Act, ch. 372, § 7,49 Stat. 449, 452 (1935) (codified as amended at 29 U.S.C. §§ 151-169 (1982 & Supp. III1985)) (no explicit right to refrain from § 7 activities). The amendments excluded super-visors from the coverage of the Act. Taft-Hartley Act, ch. 120, § 14, 61 Stat. at 151. TheTaft-Hartley Act also increased the size of the Board from three to five members. Id. § 3,61 Stat. at 139. The Office of the General Counsel was separated from the Board, and theGeneral Counsel was given the power to make all enforcement decisions. Id. New sec-tions were added creating union unfair labor practices and setting forth the duties of theparties in collective bargaining. Id. § 8, 61 Stat. at 141-42. Sections on mandatory anddiscretionary injunctions were added. Id. § 10, 61 Stat. at 149. A new section was addedgiving state laws that prohibited or limited union shops precedence over the new unionshop proviso in § 8(a)(3). Id. § 14, 61 Stat. at 151. Another new section authorized suitsin court for violation of labor contracts and suits by or against labor organizations. Id.§ 301, 61 Stat. at 156. See 1 NLRB, Legislative History of the Labor-Management Rela-tions Act, 1947, at 3-9, 15-16 (1985).

13. See 1 The Developing Labor Law 46 (C. Morris 2d ed. 1983).14. Labor Management Reporting and Disclosure (Landrum-Griffin) Act

("LMRDA"), § 602, 73 Stat. 519 (1959).15. H.R. Rep. No. 741, 86th Cong., 1st Sess. 6 (1959), reprinted in 1 NLRB, Legisla-

tive History of the Labor-Management Reporting and Disclosure Act of 1959, at 759,764 (1985) [hereinafter Legislative History LMRDA]. Landrum-Griffin amended theAct in various ways. It created a new union unfair labor practice by prohibiting picket-ing in certain defined circumstances. LMRDA, § 602, 73 Stat. at 539 (1959). Landrum-Griffin also created a number of significant legal rights for employees and duties for un-ions that were not part of the NLRA. These included: (1) a "bill of rights" for union

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ments extended the coverage of the Act to nonprofit hospitals andestablished additional procedures covering collective bargaining in thehealth care field. 16

While the Act originally was the cornerstone of American labor pol-icy, when reviewed today in the context of other legislation, the Act is nolonger as significant as it once was. There are many other federal' 7 andstate statutes,1 8 as well as judicial decisions,' 9 which also form the basis

members, (2) reporting requirements for unions, (3) requirements for union elections,(4) fiduciary responsibilities for union officers, and (5) a prohibition against extortionatepicketing. LMRDA §§ 101-105, 201-202, 401-404, 501-505, 602, 702-705, 73 Stat. at522, 522-523, 524-526, 532-535, 535-537, 539, 542-545 (1959), reprinted in I LegislativeHistory LMRDA, supra note 15, at 4-5, 6-8, 14-21, 24-27 (1985).

16. 88 Stat. 395, 396 (1974) (codified as amended in scattered sections of 29 U.S.C.).17. Federal legislation includes: the Fair Labor Standards Act of 1938, 29 U.S.C.

§§ 201-219 (1982 & Supp. III 1985); the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1982); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982); theOccupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1982 & Supp. III1985); the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (1982);the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-962 (1982 & Supp. III1985); the Veterans' Reemployment Act, 38 U.S.C. §§ 2021-2026 (1974); the Davis-Ba-con Act, 40 U.S.C. § 267(a) (1982); the 1866 Civil Rights Act, 42 U.S.C. § 1981 (1982);Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982); and the RailwayLabor Act, 45 U.S.C. §§ 151-188 (1982). See also Executive Order 11246 (1965), 1 Empl.Prac. Guide (CCH) § 221 (1986) (banning employment discrimination by governmentcontractors).

18. At least seventeen states have laws governing collective bargaining and labor-management relations in the private sector. 1-2, Lab. L. Rep. (CCH), State Laws.Twenty states have enacted "right to work" laws. 2 The Developing Labor Law 1391-92(C. Morris 2d ed. 1983). Every state other than Mississippi has passed some form ofprivate sector employment discrimination legislation. See 3 Empl. Prac. Guide (CCH).At least twenty-seven states have adopted legislation limiting the use of lie detector tests.Id. Four states have enacted plant closing legislation. See Conn. Gen. Stat. Ann. §§ 31-5in (West 1987); Me. Rev. Stat. Ann. tit. 26, § 625-B (Supp. 1987); Mass. Ann. Laws ch.151A, § 71A (Law. Co-op 1987); Wis. Stat. Ann. § 109.07(1) (West Supp. 1986); see alsoPhila., Pa. Code § 9-1500 (1982).

19. In recent years, some courts have created exceptions to the employment-at-willdoctrine. Under that doctrine, absent a written contract to the contrary, employment ofa person who is employed for an unspecified period of time is terminable at the will of theemployer. Exceptions to this general rule have been based on (1) public policy, see, e.g.,Sides v. Duke Hosp., 74 N.C. App. 331, 328 S.E.2d 818 (1985) (recognizing employee'sright not to be discharged for testifying truthfully); Ludwick v. This Minute of Carolina,Inc., 287 S.C. 219, 337 S.E.2d 213 (1985) (recognizing employee's right not to be dis-charged for obeying subpoena), (2) the theory of implied contract, see, e.g., Leikvold v.Valley View Community Hosp., 141 Ariz. 544, 688 P.2d 170 (1984) (recognizing impliedcontract arising out of provisions in company handbook); Cleary v. American Airlines,Inc., 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980) (recognizing covenant of good faithin at-will employment contract), or (3) various tort theories, see, eg., D'Ulisse-Cupo v.Board of Directors of Notre Dame High School, 202 Conn. 206, 520 A.2d 217 (1987)(upholding employee's cause of action for negligent misrepresentation).

In New York, attempts to establish exceptions to the employment-at-will doctrine gen-erally have not been successful. See Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506N.E.2d 919, 514 N.Y.S.2d 209 (1987) (absent express agreement to the contrary, em-ployee cannot establish cause of action in contract arising out of "at will" discharge);Murphy v. American Home Prod. Corp., 58 N.Y.2d 293, 301, 448 N.E.2d 86, 89, 461N.Y.S.2d 232, 235 (1983) (declining to adopt emerging view in other states allowing

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of our nation's labor policy. Nevertheless, the Act remains an importantstatute for the private sector.

Without question, it has been responsible for a number of positive con-tributions to American law and society. As declared by one union ac-tivist, "collective bargaining itself is now recognized as a firmlyestablished and viable institution with the potential for making signifi-cant contributions in resolving the problems of workers and other organ-ized groups in society."' The acceptance of collective bargaining was aprime objective of the Act,21 which gave most private sector employeesthe legal right to organize and bargain collectively through their chosenrepresentatives without domination or coercion by either management orlabor. By providing employees with a framework within which they col-lectively may express themselves, the Act has enhanced immeasurablythe power of employees and their representatives in our society.

Because workers have availed themselves of the benefits of the Act,unions are a major force of economic and political power. They havepower not only in relation to employees at the bargaining table, but alsoin the political arena, both as advocates for legislation that affects theAmerican worker and as contributors to political campaigns. Today, or-ganized labor is fifty percent larger than it was at the end of World WarII, even though the unionized percentage of the workforce has fallen."

For all essential purposes, the NLRA has succeeded in eliminating theproblem of employer-dominated unions, which were commonplace priorto the Wagner Act.2 3 Though management has been criticized for vigor-ously resisting unionization,24 the percentage of union claims of em-ployer domination and assistance has been substantially reduced."

The very existence of the Act has had a deterrent effect on improper

cause of action in tort to redress abusive discharge on grounds that "such a significantchange in our law is best left to the Legislature"). But see Weiner v. McGraw-Hill, Inc.,57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1952) (employee who did not havecontract for specific term was allowed cause of action for breach of contract based in parton employee's reliance on provisions in personnel policies and procedures handbookwhich promised dismissal for just and sufficient cause only). See generally Comment, TheEmployment-At- Will Doctrine: Time to Collapse Another Citadel, 11 U. Dayton L. Rev.399 (1986).

20. L. Baillet, Survey of Labor Relations 111 (BNA 2d ed. 1987).21. See National Labor Relations Act, ch. 372, § 7, 49 Stat. 452 (1935) (codified at 29

U.S.C. § 157 (1982)), reprinted in 2 Legislative History NLRA, supra note 7, at 3273.22. L. Baillet, supra note 20, at 79.23. During debates on what became the "Wagner Act," Senator Robert Wagner esti-

mated that 45 percent of American workers were enlisted in company unions. 78 Cong.Rec. 4229-30 (1934), reprinted in 1 Legislative History NLRA, supra note 7, at 23.

24. A major AFL-CIO study reports: "A study of organizing campaigns in the pri-vate sector shows that 95 percent of employers actively resist unionization, and 75 per-cent of all employers hire so-called 'labor-management consultants' to guide their effortsto avoid unionization at an estimated cost of over $100,000,000 annually." AFL-CIOCommittee on the Evolution of Work, The Changing Situation of Workers and TheirUnions 10 (1985).

25. For example, the percentage of § 8(a)(2) charges filed declined from 9.2% in1955, 20 NLRB Ann. Rep. 161 (1955) (Table 2), to 3.8% in 1985, Conference with Jo-

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conduct by employers and unions.2 6 Without the Act, some parties onboth sides undoubtedly would return to the "law of the jungle."

While the Board, with some justification, has been criticized for itsbacklog of cases,27 consistently over many years the overwhelming ma-jority of all unfair labor practice cases have been settled prior to trial,2

affording the parties a speedy resolution of their dispute. Moreover, atleast ninety percent of the cases that the Board actually decides havebeen unanimous under every administration.29 Thus, even though therehave been controversies over particular decisions, the Act has providedthe parties with overall stability through the years.

Beyond this, the Act, as designed, is quite flexible. It permits theBoard both to answer new legal questions arising under the Act30 and toreview and revise previous interpretations, based on its own experience

seph Moore, Acting NLRB Executive Secretary, (July 6, 1987) (1985 preliminary, un-published data) (available in the files of the Fordham Law Review).

26. One of the reasons for the Act's success is § 301, enacted in 1947, which madecollective bargaining agreements mutually enforceable in federal court. Under § 301, em-ployers can get injunctions against strikes over issues subject to arbitration. See BoysMarkets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970); Textile WorkersUnion of Am. v. Lincoln Mills, 353 U.S. 448 (1957). It also permits unions to petition forenforcement of an employer's promise to arbitrate. See United Steelworkers of Am. v.American Mfg. Co., 363 U.S. 564 (1960), United Steelworkers of Am. v. Warrior Gulf&Navigation Co., 363 U.S. 574 (1960), United Steelworkers of Am. v. Enterprise Wheel &Car Corp., 363 U.S. 593 (1960) (known collectively as the Steelworkers Trilogy).

Section 301 has provided federal courts with a significant role in developing a substan-tive body of federal labor law relating not only to collective bargaining agreements, butalso to the union's duty of fair representation. See Bowen v. United States Postal Service,459 U.S. 212 (1983) (affirming the existence of a union's implied § 301 duty of fair repre-sentation); Vaca v. Sipes, 386 U.S. 171 (1967) (same). At the same time, the SupremeCourt has made it clear that the states retain their traditional police power with respect toviolence, overt threats of violence and mass picketing. See Allen-Bradley Local No. 1 I I Iv. Wisconsin Employment Relations Bd., 315 U.S. 740, 748-49 (1942).

27. E.g., H.R. Rep. No. 1141, 98th Cong., 2d Sess. 16 (1984) ("when a case comes tothe Board, it appears to enter a new dimension-one where time has little meaning");Bartosic, Labor Law Reform-The NLRB and a Labor Law Court, 4 Ga. L. Rev. 647,653 (1970) (criticizing "caseload-delay-caseload syndrome"); see generally infra text ac-companying notes 49-76.

28. R. Collyer, NLRB General Counsel's Report Summarizing Operations in Fiscal1986, Daily Lab. Rep. (BNA) No. 38, at D-1 (Feb. 27, 1987) (1985 settlement rate94.4%; 1986 settlement rate 91.7%); H.R. Rep. No. 1141, 98th Cong., 2d Sess. 2 (1984)(about 90%); see generally Labor Relations Conferences and Studies, Southwestern LegalFoundation Institute, Lab. Rel. Y.B. (BNA) 159 (1984) (statement of former BoardChairman Edward Miller that "when violations occur, most of them-the huge majorityof them-are promptly remedied through settlement agreements-tens and even hun-dreds of times more than the few cases that reach the National Labor Relations Board fordecision each year").

29. Daily Lab. Rep. (BNA) No. 124, at E-1, E-7 (June 27, 1984) (statement of formerBoard Chairman Edward B. Miller); Conference with Joseph Moore, Acting NLRB Ex-ecutive Secretary, July 6, 1987.

30. See, e.g., Harter Equip., Inc. and Operating Eng'rs, Local 825, 280 N.L.R.B. 71,122 L.R.R.M. 1219 (1986) (holding that, absent specific proof of anti-union motivation,employer did not violate §§ 8(a)(3) and (1) by hiring temporary replacements after lock-ing out permanent employees for the purpose of bringing economic pressure in support ofa legitimate bargaining position).

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and the effectiveness of earlier rulings.3' In addition, the Act is capableof adaptation to changing conditions in American society. For example,the Board will be ruling on a case involving a drug-testing program in theworkplace.32

Notwithstanding the accomplishments and contributions of theNLRA, there are many who disparage the Act. Some of the recent criti-cisms by union representatives have been quite pointed. AFL-CIO Sec-retary Tom Donahue has stated that the Act is an "abject and utterfailure.",3 3 AFL-CIO President Lane Kirkland said that current Boardmembers are "advocates of the most retrograde element of the employersociety." 34 United Mine Workers President, Richard Trumka, testified

31. E.g., John Deklewa & Sons, Inc. and International Ass'n of Bridge, Structuraland Ornamental Ion Workers, Local 3, 282 N.L.R.B. 184, 124 L.R.R.M. 1185 (1987)(reversing long-standing precedent and establishing new rules governing representationaland contractual relationships in the construction industry).

This flexibility, however, has its price, and some commentators have criticized the fre-quency of reversals of Board precedent. See infra text accompanying notes 77-86.

32. See United Technologies Corp. and District Lodge 91, 125 L.R.R.M. 2011 (CaseNo. 39-CA-3263 (June 9, 1987)); But cf Ona Corp., a division of Onan Corp., 285N.L.R.B. No. 77 (1987) (holding that employee action committee established as Qualityof Work Life Program ("QWL") must be abolished to remedy § 8(a)(2) violations of theAct).

Quality of Work Life Programs, such as the one in Ona Corp., are cooperative pro-grams in which labor and management work together to achieve greater productivity.Abandoning the traditional posture of confrontation, labor and management participantsstrive together to solve problems. In some cases, executives do not wear neckties, becauseties are perceived as symbols of traditional authority that interfere with open and directcommunication. Schlossberg & Fetter, U.S. Labor Law and the Future of Labor-Manage-ment Cooperation, 3 Lab. Law. 11, 11, 12 (1987). According to the AFL-CIO Committeeon the Evolution of Work, in 1983 there were more than one thousand QWL programsunder way in many forms: "labor-management committees, participatory management,employee involvement, shop-floor democracy, consultation schemes, quality circles, au-tonomous work groups, quality of work teams, profit-sharing arrangements, and soforth." AFL-CIO Committee on the Evolution of Work, The Future of Work 10 (1983).

As described by Schlossberg and Fetter, one problem is NLRA § 8(a)(2), which wasenacted to outlaw employer domination of company unions. Schlossberg & Fetter, supra,at 25. That section provides, in pertinent part, that it shall be an unfair labor practice foran employer "[t]o dominate or interfere with the formation or administration of any labororganization or contribute financial or other support to it." Wagner Act, § 8(2), 49 Stat.449, 452 (1935) (codified as amended at 29 U.S.C. § 158(a)(2) (1982)). Schlossberg andFetter point out that a company payment for any of the activities of union representativeson a QWL committee (such as transportation on a company plane) might be deemed aviolation of this section. Schlossberg and Fetter, supra, at 35-36.

Schlossberg and Fetter also take the position that NLRA § 9(a) may pose a problem.Id. at 32-34. See generally Craver, The Vitality of the American Labor Movement in theTwenty-first Century, 3 U. Ill. L. Rev. 633, 672-778, 683-88 (1983) (discussing the reasonsfor, and potential problems associated with, increased labor participation in corporatemanagement); Address by Wilford Johansen, University of Arizona's 23rd Annual La-bor-Management Conference 19 (Mar. 25, 1987) (stating that QWL Programs do "pres-ent a serious and complex challenge" and "[i]n certain areas the Board itself may bepowerless to effectuate needed changes, and an Act of Congress may be required") (avail-able in the files of the Fordham Law Review).

33. Daily Lab. Rep. (BNA) No. 142, at A-3 (July 24, 1985).34. Transcript of the news conference held by AFL-CIO President Lane Kirkland on

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that the NLRA "is acting right now as a cruel hoax to the Americanworker."35 Finally, union attorney Laurence J. Cohen stated that theBoard "has been taken over by pirates who are methodically scuttling theAct which they are charged to protect. "36

Not all of the criticism has come from labor. In 1984, the House Com-mittee on Government Operations found that delays in decision-makingby the Board and the case backlog "have frustrated and jeopardized thepurposes of the National Labor Relations Act and have caused workersto lose faith in the system.",3 1 Judge Abner Mikva has expressed the viewthat "union members believe the NLRA provides inadequate protectionwhen they confront management."38 Former Board chairman and man-agement attorney Guy Farmer stated: "[T]he Board has inflicted uponitself its own death wound. It is unable to function in such a way as toimplement the laudable purposes of the National Labor Relations Act.... ,"" Finally, Professor Clyde Summers asserted that "the legal rulesdeveloped by the Board and the courts do not express or implement thepremises and purposes of the statute." 4°

Dissatisfaction with the NLRA and the Board is not unique to theReagan Administration. Many of the problems on which critics focustoday have been raised before. For example, there have been periodic

February 17, 1987, at the winter meeting of the AFL-CIO Executive Council in Bal Har-bor, Florida, at 3 (available in the files of the Fordham Law Review).

35. Has Labor Law Failed: Joint Oversight Hearings Before the Subcomm. on Labor-Management Relations of the Comm. on Educ and Labor and the Comm. on Gov't Opera-tions, Manpower and Housing, 98th Cong., 2d Sess. 17 (1984).

36. Daily Lab. Rep. (BNA) No. 205, at E-I (Oct. 23, 1984); see generally Bernstein &Gold, Mid-Life Crises: The NLRB at Fifty, I Dissent 213, 213 (1985) (stating there istruth to claims that "Ronald Reagan has 'packed' the NLRB in management's favor toan unprecedented degree, converting it ideologically into a weapon against the labormovement").

37. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 18 (1984). There is some indicationthat in recent years unions have decreased their use of the Board. For example, in 1984and 1985, the total number of cases filed with the Board decreased (although it increasedslightly by 1.7% in 1986). R. Collyer, NLRB General Counsel's Report SummarizingOperations in Year 1986, Daily Lab. Rep. (BNA) No. 38, at D-I (Feb. 27, 1987). Thenumber of representation cases filed has decreased each year since 1980. Conference withJohn Truesdale, NLRB Executive Secretary, May 20, 1987.

38. Comment, The Changing Role of the Wagner Act in the American Labor Move-ment, 38 Stan. L. Rev. 1123, 1124 (1986) (authored by Abner J. Mikva).

39. Farmer, Transfer of NLRB Jurisdiction Over Unfair Labor Practices to LaborCourts?, 88 W. Va. L. Rev. 1, 2 (1985) (footnote omitted).

40. Summers, Past Premises, Present Failure and Future Needs in Labor Legislation,31 Buffalo L. Rev. 9, 17 (1982). There have been other criticisms from academia. Fg..Address by Professor John T Dunlop of Harvard University on Legal Framework of Indus-trial Relations in the United States, Daily Lab. Rep. (BNA) No. 194, at E- 1, E-3 (Oct. 7,1985) ("The 'findings and policies' expressed at the outset of the Wagner Act and theTaft-Hartley Act, in my view, constitute an inappropriate basis for the legal framework ofcollective bargaining and industrial relations for the 1990's and beyond."); Speech byPaul C. Weiler Before National Academy ofArbitrators, Daily Lab. Rep. (BNA) No. 112,at E-l, E-7 (June 11, 1985) ("I for one do not believe it to be self-evident that collectivebargaining is an institution worth saving .... ").


complaints about the serious delay in the administration of justice due tothe backlog of pending cases.4 ' During previous administrations, therewere also strong negative reactions to the decisions of newly appointedBoard members that reversed earlier Board rulings.42 Finally, theBoard's reliance on case-by-case adjudication to develop labor policy,without utilizing its rulemaking powers, has been the subject of discus-sion and criticism for decades.43

While much of the recent criticism has been partisan and overly stri-dent, the fact remains that, stripped of the rhetoric and hyperbole, someof it simply cannot be ignored. We believe the time is ripe for a dialogueto ascertain whether any structural changes in the Act itself or changesin enforcement by the NLRB would make the Act and the Board moreeffective.

We propose that a tripartite, private sector conference, attended byrepresentatives of labor, management and government be held under theauspices of the American Bar Association's Labor Law Section, its Com-mittee on NLRB Practices and Procedures, or another ABA committeecreated especially for this purpose. While participants at the conferencewould discuss a wide variety of possible changes, areas of particular in-

41. E.g., Bartosic, supra note 27, at 650-55 (discussing "institutionalized delay" fromtime of filing to Board decision); Tobriner, The Taft-Hartley Act After Three Years, ILab. L.J. 1164, 1215 (1950) ("[H]earings on unfair labor practice charges often do nottake place until after a lapse of six to nine months. As a result, during the interval, theenforcement of the act is frustrated .... "); Revised Findings of the Chairman's TaskForce on the NLRB, 6 (1976) ("The backlog of cases pending for hearing and decision byALJs has mounted in recent years and is seriously delaying justice for the parties.").

42. As one commentator noted:The views which were publicly expressed by the new appointees clearly showedtheir dissatisfaction with past Board rulings generally. Consequently, consider-able changes have been made and the reaction has been as expected-laborclaiming that its dire predictions have come true; management heralding thetrend but denouncing its limited scope.

Note, The NLRB Under Republican Administration: Recent Trends and Their PoliticalImplications, 55 Colum. L. Rev. 852, 852 (1955) (footnote omitted). See generally Morris,The Case for Unitary Enforcement of Federal Labor Law-Concerning A Specialized Arti-cle III Court and the Reorganization of Existing Agencies, 26 Sw. L.J. 471, 477 (1972)("[T]here is truth in the general accusation regarding political swings of the pendulum,for the policy shifts can be easily documented." (footnote omitted)).

43. E.g., Congressional Oversight of Administrative Agencies (NLRB): HearingsBefore the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90thCong., 2d Sess. 916-18 (1968) (statements of Judge Henry J. Friendly that Board's failureto use rulemaking powers is source of many administrative problems); H.R. Rep. No.1141, 98th Cong., 2d Sess. 16 (1984) ("Where a majority of the Board wishes to makesubstantial changes in the underlying Board law in so many areas, it should do so byusing its rulemaking authority .... ); Peck, The Atrophied Rule-Making Powers of theNational Labor Relations Board, 70 Yale L.J. 729, 753 (1960-61) ("The Board's view thatthe role which it performs is one to which the rule-making process is not well adapted ispatently unsound."); Samoff, Coping with the NLRBs Growing Caseload, 22 Lab. L.J.739, 745-46 (1971) (rulemaking would "discourage filings and reduce substantially thebulk of the charges which are withdrawn or dismissed"); Summers, Politics, Policy Mak-ing and the NLRB, 6 Syracuse L. Rev. 93, 106 (1954) ("Adjudication is used as a clumsysubstitute for rule making.").


terest and scrutiny would be the case backlog problem," the effect onlabor and management of retroactive and frequent reversals of Boardprecedent,45 the Board's historic failure to utilize its rulemaking powers(other than on a limited basis)," the Board's policy of intracircuit nonac-quiescence,4 7 and various proposals to establish a Labor Court." A re-port issued following the conclusion of such a conference could be asubject of future Congressional hearings.

ISSUES TO BE CONSIDERED AT THE PROPOSED ABA CONFERENCE

A. The Backlog Problem

There has been a case backlog at the Board from time to time since atleast 1950.'9 Between 1974 and 1984, the backlog continued to grow."It reached a peak in February 1984, when 1,647 cases were pendingbefore the Board.5 Concerns over the backlog resulted in repeated con-gressional oversight hearings that criticized the Board for its case back-log.5 By April 1, 1987, the backlog figure had been reduced to 889 casespending before the Board.53 This figure, however, is still substantiallyabove what the Board traditionally has considered an "acceptable" back-log of four hundred to five hundred cases.5 4 One issue for discussion atthe tripartite conference is what should be considered an acceptable casebacklog.

The delay in processing cases creates frustration for employees, un-ions, and employers alike. For employees, a remedy granted after a sub-stantial time lapse "will bear little relation to the human situation whichgave rise to the need for Government intervention."" For both unions

44. See infra text accompanying notes 49-76.45. See infra text accompanying notes 77-88.46. See infra text accompanying notes 89-111.47. See infra text accompanying notes 112-64.48. See infra text accompanying notes 168-89.49. R. Flanagan, Labor Relations and the Litigation Explosion 92 (1987).50. For fiscal year 1983, the median time lapse for the processing of an unfair practice

case from the Administrative Law Judge ("ALJ")'s decision to the Board's decision was194 days. This, however, was only the median. In 25% of the cases, the Board took 271days to reach a decision. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 7 (1984). In 10%,the Board took 494 days or more. Id.

51. Conference with Joseph Moore, Acting NLRB Executive Secretary (July 6,1987).

52. See Oversight of the NLRB (Part 2): Hearing Before a Subcomm. of the HouseComm. On Gov't Operations, 99th Cong., 2d Sess. (1986); Oversight of the NLRB: Hear-ing Before a Subcomm. of the House Comm. on Gov't Operations, 99th Cong., Ist Sess.(1985); NLRB Case Backlog (Part 2): Hearing Before a Subcomm. of the House Comm.on Gov't Operations, 98th Cong., 2d Sess. (1984); NLRB Case Backlog: Hearing Before aSubcomm. of the House Comm. on Gov't Operations, 98th Cong., Ist Sess. (1983).

53. Conference with Joseph Moore, Acting NLRB Executive Secretary (July 6,1987).

54. NLRB Case Backlog (Part 2): Hearing Before a Subcomn. of the Comm. on Gov'tOperations, 98th Cong., 2d Sess. 52 (statement of Donald L. Dotson, Chairman. NLRB).

55. Advisory Panel on Labor-Management Relations Law. Report to the Senate Comm.

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and employees, "[d]elay works against organizing efforts and againstpeople who would like to join labor unions."'56 Delay also can be disad-vantageous to employers since a company's potential monetary liabilityrises while a case is pending before the Board and the courts.5 7 More-over, lengthy delay in the decisionmaking process can leave the labor-management community for a protracted time without knowledge ofwhat their rights and duties are in the eyes of a Board whose membershave substantially changed.

Indiana and Michigan Electric Co. and Local Union No. 1392, Interna-tional Brotherhood of Electrical Workers5" provides a recent example ofegregious delay in the decisionmaking process. The issue before theBoard was whether management had a duty to arbitrate grievances filedduring a contractual hiatus period (that is, after the contract expired andbefore a new contract took effect). The decision of the AdministrativeLaw Judge ("AL") was made on July 31, 1981; oral argument beforethe Board took place more than two years later, in November 1983. De-spite the importance to both labor and management of knowing what thelaw is in this complex area, the Board did not render its decision for yetanother three and one-half years!59 There can be no acceptable explana-tion for having taken nearly six years to adjudicate this case.

The speed with which the President nominates and the Senate con-firms individuals to fill vacancies on the Board can cause or alleviate de-lay in processing cases. For example, from December 1979 until May1984, eleven individuals served as Board members.60 During this sameapproximate period, the Board operated with a full complement of mem-bers only fifty percent of the time.61 One position remained vacant fromAugust 1983 until May 1985.62 The combination of high turnover and

on Labor and Public Welfare, Organization and Procedure of the National Labor Rela-tions Board, S. Doc. No. 81, 86th Cong., 2d Sess. 2 (1960).

56. Delay, Slowness in Decisionmaking, and the Case Backlog at the NLRB: Report byComm. on Gov't Operations, H.R. Rep. No. 1141, 98th Cong., 2d Sess. 9 (1984).

57. Id. at 4; see also NLRB v. J.H. Rutter-Rex Mfg., 396 U.S. 258, 264-65 (1969)(sustaining a Board backpay award covering approximately seven years, notwithstandingthe employer's argument that length of period was due primarily to Board's delay inseeking enforcement).

58. 284 N.L.R.B. No. 7 (1987) (slip op.).59. The Board finally held that the arbitration clause in the expired contracts was not

broad enough to negate the presumption favoring survival of the arbitration commitment.Id. at 20. The Board further ruled, however, that the rights involved in each of thespecific grievances at issue were not arbitrable because they did not "arise under" thecontract-that is, they were triggered by events or conduct that occurred after contractexpiration and did not accrue or vest to some degree during the life of the contract withinthe meaning of Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary WorkersUnion, 430 U.S. 243 (1977). 284 N.L.R.B. No. 7, at 23.

60. NLRB Case Backlog (Part II): Hearing Before a Subcomm. of the Committee onGov't. Operations, 98th Cong., 2d Sess. 45 (statement of Donald L. Dotson, Chairman,NLRB).

61. Id. at 56.62. Conference with Joseph Moore, Acting NLRB Executive Secretary (July 6,

1987).

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delay in the appointment process obviously contributes to case backlog.In response to this problem, one House committee concluded that "a

legislative change in the National Labor Relations Act may be warrantedto provide for a [permissible] carryover of membership to keep a memberon board until a successor has been appointed."63 The President has ac-celerated the appointment process considerably,' so there is no presentcrisis over Board appointments. Nonetheless, consideration should begiven to an amendment that would avoid future significant gaps in Boardmembership.

The Board itself also could alleviate the case backlog by changing theinternal procedure for reassigning cases after a Board member has de-parted. Members hear cases in three-person subpanels consisting of twomembers and a chairman.6" Each utilizes a staff of twenty to twenty-fiveattorneys, who work on the cases assigned to the member.66 At present,when a member leaves the Board, his staff is reassigned to the Chairmanof the NLRB (or if the Chairman declines, to another Board member)until the new member arrives.67 These staff attorneys, however, may ormay not continue to handle the departed member's cases. Cases assignedto the departing member as chairman of a three-person subpanel nor-mally are worked on for the Board Chairman by the departing member'sstaff.68 Any case originally assigned to the departing member as a mem-ber of a three-person subpanel, however, is reassigned to another Boardmember without the benefit of or use of staff who originally had reviewedand worked on the case.69 As noted by one congressional committee,"this process is not very efficient and creates needless duplication of ef-fort."7° A new procedure that would utilize the attorneys who alreadyhad worked on such cases in the review process could be devised.

In addition, the Board should consider abolishing its custom of circu-lating courtesy copies of proposed decisions to non-subpanel membersfor review in cases that do not overrule precedent. Under current prac-tice, subpanels circulate courtesy copies of decisions to non-subpanelmembers.7 Until all nonpanel members sign off on the case, it cannot bereleased.7" This obviously increases the flow of paperwork across the

63. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 6 (1984).64. For example, Member Dennis left the Board in June 1986. and Member Cracraft

filled the vacancy five months later, in November 1986. Conference with Joseph Moore,Acting NLRB Executive Secretary (July 6, 1987). The acceleration of the appointmentprocess undoubtedly was the result of widespread criticism from the labor-managementcommunity.

65. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 12 (1984); Conference with RobertHunter, former Board member (May 21, 1987).

66. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 12 (1984).67. Id.68. Id at 13.69. Id70. Id71. Interview with Robert Hunter, former Board member (May 11, 1987).72. Id.

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desks of non-subpanel members and slows resolution of disputes. There-fore, for more routine cases, the Board should consider abandoning thiskind of courtesy review procedure. In the alternative, it might choose toestablish a time limit for courtesy review of such cases, following whichthe case may be released regardless of whether a non-subpanel memberhas acted.

Another potential internal improvement would be to allow the Boardto issue subpanel decisions agreed to by two Board members after thirtydays' notice to the third panel member who, under current unwrittenprocedure, has the power to hold up the case indefinitely until he or shehas written a separate dissenting or concurring opinion. Still anotherchange aimed at speeding up decisionmaking would be for the Board, inappropriate cases, to render affirmatory decisions specifically designatedas having no precedential value. The ability of the Board to render suchdecisions would eliminate the need for Board members to draft lengthyopinions that concur in the result reached by an ALJ, but differ with oneor more of the ALJ's rationales. There is precedent for this kind of ap-proach in the rules of the United States courts of appeals providing thatunpublished opinions and orders are not to be cited as precedent.73

Several legislative changes also could alleviate delay in the decision-making process. First, Congress could amend the Act to make decisionsof the ALJs final unless two or more Board members grant a petition forcertiorari filed within thirty days following an ALJ's decision. 74 Thiswould constitute a major change in the Act and a novel approach toadministrative law procedure. Second, Congress could enact mandatorytimetables within which decisions by ALJs, Regional Directors and theBoard must be rendered. There is precedent for this approach in certaintrade legislation .7 Third, the Act could be amended to make Board or-ders self-enforcing unless either party seeks judicial review within a lim-ited time period following a Board decision. 6 This would expedite theprocess of arriving at a final judicial resolution of a dispute. Any of thesemeasures would help to reduce the backlog problem.

73. See, e.g., D.C. Cir. R. 8(f); 2d Cir. R. 0.23; Fed. Cir. R. 18(a).74. A similar idea is discussed in Bartosic, supra note 27, at 663, and Lyne, The

National Labor Relations Board and Suggested Alternatives, 22 Lab. L.J. 408, 411 (1971).75. See, e.g., Tariff Act of 1930, as amended, 19 U.S.C. §§ 1337(b)(1), (g) (1982).76. There is precedent for this approach in the statutory provisions governing judicial

review and enforcement of orders of the Federal Occupational Safety and Health ReviewCommission. Under 29 U.S.C. § 660(b) (1982), if no petition for review is filed withinsixty days of the Commission's order, the Secretary of Labor may file a petition for en-forcement, and the "clerk of the court, unless otherwise ordered by the court, shall forth-with enter a decree enforcing the order and shall transmit a copy of such decree to theSecretary and the employer named in the petition." Id. If the employer fails to comply,the next step is a contempt proceeding. The statute further provides that even if an ag-grieved party seeks judicial review of an order in a timely manner, the commencement ofreview proceedings "shall not, unless ordered by the court, operate as a stay of the orderof the Commission." 29 U.S.C. § 660(a) (Supp. III 1985).

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B. Swings of the Pendulum

Labor representatives77 have vehemently denounced the Reagan Boardfor its interpretations of the Act that reverse precedent established dur-ing previous administrations.7" Although recent criticism may be moreharsh than usual, particularly because the unions now are struggling fornew members,79 the fact remains that previous Boards have changed pre-cedent too."'

77. See supra text accompanying notes 33-40; see also Page, The Rise, Decline andResurrection ofAmerican Labor Law: A Critical Assessment of the NLRA at Age Fifty, 36Lab. L.J. 594, 597 (1985) ("The Reagan/Dotson Board has far exceeded the expectationsof even the wildest Right-to-Work or Heritage Foundation union-hater. It has reversedmore long-standing precedents than any previous Board.").

78. For example, in Rossmore House and Hotel Employees and Restaurant Employ-ees Union, Local 11, 269 N.L.R.B. 1176 (1984), aff'd, 760 F.2d 1006 (1985), the ReaganBoard overruled PPG Indus., Lexington Plant, Fiber Glass Div. and Chauffeurs, Team-sters and Helpers Local Union No. 391, 251 N.L.R.B. 1146 (1980) and similar cases "tothe extent they find that an employer's questioning open and active union supportersabout their union sentiments, in the absence of threats or promises, necessarily interfereswith, restrains, or coerces employees in violation of Section 8(a)(1) of the Act." Ross-more House, 269 N.L.R.B. at 1177-78 (footnote omitted). In Meyers Indus., Inc. andKenneth P. Prill, 268 N.L.R.B. 493 (1984), enforcement denied sub nom. Prill v. NLRB,755 F.2d 941, cert. denied, 474 U.S. 948 (1985), the Reagan Board explicitly overruledAlleluia Cushion Co. and Jack G. Henley, 221 N.L.R-B. 999 (1975) and its progeny andadopted a new standard for concerted activity covering only "some kind of group activ-ity." Meyers, 268 N.L.R.B. at 494, 497. In Taracorp Indus., a division of Taracorp Inc.and Fred Elmore, 273 N.L.R.B. 221, 223 (1984), the Reagan Board overruled KraftFoods, Inc. and General Teamsters Local Union No. 528, 251 N.L.R.B. 598 (1980) andits progeny, holding that henceforth the Board will not impose make-whole remedies forWeingarten violations, which involve a denial by an employer of an employee's requestfor union representation at an investigatory interview. Id. at 222. In Gourmet Foods,Inc. and Warehouse Employees of St. Paul, Minn., Local Union No. 503, 270 N.LR.B.578 (1984), the Board overruled all previous cases "in which the Board found it hadstatutory remedial authority to issue nonmajority bargaining orders and in which theBoard has exercised that authority." Id. at 583 (footnote omitted). In the view of theReagan Board, then, nonmajority bargaining orders are not within the remedial discre-tion of the Board.

79. The percentage of unionized employees in the workforce has declined from 38%in 1954 to roughly 19% in 1984 and 18% in 1985. See Speech of Paul C. Weiler BeforeNational Academy of Arbitrators, [May-June] Daily Lab. Rep. (BNA) No. 112, at E-1(June 11, 1985) (1954 & 1984 statistics); Congressional Research Service Report on Impli-cations for Economic Policy and Labor Legislation of Decline in Union Membership, DailyLab. Rep. (BNA) No. 114, at D-1, D-2 (June 13, 1986) (1984 & 1985 statistics).

80. For example, in post-arbitration deferral cases, which involve how much weightthe Board should give an arbitrator's award in a subsequent unfair labor practice case,the Board's record over time shows a series of reversals under different Boards.

The general standard was set initially by the so-called Eisenhower Board in SpielbergMfg. Co. and Harold Guenberg, 112 N.L.R.B. 1080 (1955), which held the Board woulddefer to an arbitrator's award so long as that decision was "not clearly repugnant to thepurposes and policies of the Act." Id. at 1082. Next, the Kennedy Board in RaytheonCo. and Jane Reikard, 140 N.L.R.B. 883 (1963), enforcement denied, 326 F.2d 471(1964), said it would not defer to an arbitrator's decision unless the arbitrator had care-fully considered the unfair labor practice issue in the arbitration. Id. at 884-85. TheNixon Board, however, overruled this decision in Electronic Reproduction Serv. Corp.;Madison Square Offset Co. and Xerographic Reproduction Center, Inc. and District 65,Wholesale, Retail, Office & Processing Union, 213 N.L.R.B. 758 (1974), and essentially

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Proponents of the present system argue that one of the strengths of theAct is that it is flexible enough to adapt to changed conditions, and,moreover, that Board decisions should reflect the policies and ap-proaches of the President who has appointed the majority of Board mem-bers.81 In fact, the Act itself actually provides for this kind of responseto the political process by creating one opening on the Board each year.82

Over three decades ago, Professor Clyde Summers summarized thecase for a politically responsive Board as follows:

This agency reaction to changes in the political climate is not necessar-ily bad. Ought not government, in the making of policies, reflect ma-jority will? Should not administrative agencies, within the area ofdiscretion granted them, choose the policy which most accurately ex-presses the desires of the majority? To do so is to make democracymore responsive, an especially significant contribution when govern-ment tends to become remote. It is true that our principal instrumentfor expressing majority will is Congress speaking through legislation.However, there is serious doubt whether Congress is capable of expres-sing small shifts or gradual changes. Amendments to the National La-bor Relations Act make long jumps, tending to go beyond the existingbalance point of public opinion. The Board, by bending to the windcan enable the same statutory words to serve a range of shifts, thusavoiding the necessity of frequent changes.83

Critics of the current system object to such "bending to the wind"84

because parties contemplating a course of action cannot know what thelaw ultimately will be, given the length of time it takes to get a decision

returned to the old Spielberg standard. Id. at 762. In 1980, however, the Carter Boardoverruled Electronic Reproduction Service in Suburban Motor Freight, Inc. and RalphSingleton, 247 N.L.R.B. 146 (1980), and generally returned to the holding in Raytheon.Id. at 146 & n.7. The Carter Board then went even further in Professional Porter &Window Cleaning Co., Div. of Propoco, Inc. and Margaret Bailey, 263 N.L.R.B. 136(1982), aff'd, 118 L.R.R.M. 2966 (1983), which limited deference to an arbitrator'saward where the arbitrator had procedurally disposed of issues in the same manner as theBoard would have. Id. at 137-38. Subsequently, the Reagan Board, in Olin Corp. andLocal 8-77, Oil, Chemical and Atomic Workers Int'l Union, 268 N.L.R.B. 573 (1984),overruled Suburban Motor Freight and Propoco and returned to the Eisenhower Board'sSpielberg standard. 268 N.L.R.B. at 574 & n.8. See generally, Morris, supra note 42, at477 n.38 (listing NLRB decisions that illustrate how policies shifted when presidentschanged).

81. Bartosic, supra note 27, at 660 ("In my opinion, the national labor policy shouldby an evolutionary process be responsive to political, economic and social changes.");Bierman, Reflections on the Problem of Labor Board Instability, 62 Den. U.L. Rev. 551,558 (1985) ("[I]f the President may ultimately be held politically responsible for an ad-ministrative agency's actions, it is reasonable for him to appoint agency members whowill best promote his political ideologies and goals."); Winter, Judicial Review of AgencyDecisions: The Labor Board and the Court, 1968 Sup. Ct. Rev. 53, 65 (a politically re-sponsive NLRB shows "desirable flexibilty" given "the difficulties Congress faces in en-acting labor legislation").

82. 29 U.S.C. § 153(a) (1985).83. Summers, Politics, Policy Making, and the NLRB, 6 Syracuse L. Rev. 93, 100

(1954) (footnotes omitted).84. Id.

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from the Board, the uncertainty about who will be in the White House,and what position Board members appointed by a new President mighthave on labor law and policy. Lawyers trying to advise clients can relatethe present state of the law, but no one really knows what the law, oftenretroactively applied,85 might be several years hence. The situation isbest illustrated by the Hollywood Ceramics-Shopping Kart schism, involv-ing the important issue of misrepresentation during union elections. Inaddressing this issue, the Board reversed itself three times in five years.Without question, neither lawyers nor their clients can know whetherlegal advice given today will remain good advice tomorrow.8 6

One way to reduce these Board-created legal gyrations is to create

85. See Deluxe Metal Furniture Co. and Sheet Metal Workers Int'l Assoc., 121N.L.R.B. 995, 1006-07 (1958) (adopts the traditional judicial practice of applying eachpronouncement of a rule of law to (a) the case in which the issue arises and (b) all pend-ing cases "in whatever stage"); see generally NLRB v. Food Store Employees Union,Local 347, 417 U.S. 1, 10 & n.10 (1974) ("a court reviewing an agency decision followingan intervening change of policy by the agency should remand to permit the agency todecide in the first instance whether giving the change retrospective effect will best effectu-ate the policies underlying the agency's governing act"); Certainteed Corp. v. NLRB, 714F.2d 1042, 1056 (1 lth Cir. 1983) ("Barring some extroadinary circumstance, this courtwill not disturb the purely administrative determination that giving retrospective or pro-spective effect to a policy change best effectuates the purposes of its governing act.");Zimmerman, Restoring Stability In the Implementation of the National Labor RelationsAct, 1 Lab. Law. 1, 9 (1985) ("The Board's frequent policy shifts and retroactive applica-tions of major questions of statutory interpretation have subjected parties to present dis-advantage for their past conduct.")

86. In Hollywood Ceramics Co. and United Brick and Clay Workers of Am., 140N.L.R.B. 221 (1962), the Board decided that

an election should be set aside only where there has been a misrepresentation orother similar campaign trickery, which involves a substantial departure fromthe truth, at a time which prevents the other party or parties from making aneffective reply, so that the misrepresentation, whether deliberate or not, mayreasonably be expected to have a significant impact on the election.

Id at 224 (footnote omitted). The Board further held that "even where a misrepresenta-tion is shown to have been substantial, the Board may still refuse to set aside the electionif it finds upon consideration of all the circumstances that the statement would not belikely to have had a real impact on the election[s]." Id

In 1977, in Shopping Kart Food Market, Inc. and Retail Clerks Union local 99, 228N.L.R.B. 1311 (1977), the Board overruled Hollywood Ceramics, holding that the Boardno longer would set aside elections on the basis of misleading campaign statements. Id. at1313. Under the new standard, Board intervention would occur only "in instances wherea party has engaged in such deceptive campaign practices as improperly involving theBoard and its processes, or the use of forged documents which render the voters unable torecognize the propaganda for what it is." Id.

The following year Shopping Kart was overruled by General Knit of Cal., Inc. andUnited Steel Workers of Am., 239 N.L.R.B. 619 (1978), which restored Hollywood Ce-ramics. 239 N.L.R.B. at 623. However, four years later, in 1982, the Board in MidlandNat'l Life Ins. Co. and Local 304A, United Food and Commercial Workers Union, 263N.L.R.B. 127 (1982) overruled General Knit and Hollywood Ceramics and restored Shop-ping Kart 263 N.L.R.B. at 132-33. In Midland, the Board also ruled that it would applythe new [Shopping Kart] rule "[i]n accordance with our usual practice... 'to all pendingcases in whatever stage.'" Id. at 133 n.24 (quoting Deluxe Metal Furniture Co. andSheet Metal Workers Int'l Assoc., 121 N.L.R.B. 995, 1007 (1958)).

FORDHAM LAW REVIEW

longer terms for Board members, such as seven or even ten years.87 Inaddition, greater use of rulemaking probably would deter frequent dra-matic changes. In any event, so long as the Board continues to operateby adjudication on a case-by-case basis, serious consideration should begiven to the New York City Bar Association's proposal that when theBoard reverses prior doctrine, the "new policy [should] not be appliedretroactively except to the parties in the case in which the policy reversalis announced and other cases then pending before the Board."88 Imple-mentation of this proposal at least would alleviate somewhat the inequi-ties inherent in applying new Board precedent retroactively to partieswho acted in reliance on the reversed doctrine.

C. Rulemaking

There has been substantial criticism over the years concerning theNLRB's failure to utilize rulemaking for policy formulation. 9 Somecritics would achieve greater certainty in the state of the law by havingthe Board utilize its rulemaking power to address various substantivequestions.9" Under this view, the Board would cease to rely completelyon the case-by-case adjudication method that all Boards have used toshape federal labor policy.

Under the NLRA9 1 and the Administrative Procedure Act("APA")92, the Board has the power to engage in rulemaking to formu-late labor policy. Rulemaking requires the Board to (1) place a generalnotice of proposed rules in the Federal Register, (2) give interested per-sons the opportunity to participate in the rulemaking process throughwritten comments, and (3) "incorporate in the rules adopted a concise

87. Congressional Oversight of Administrative Agencies (NLRB): Hearings Before theSubcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong., 2dSess. 905 (1968) (testimony of Judge Henry J. Friendly that longer terms for Board mem-bers would enhance the attractiveness of those posts for good people).

88. Committee on Labor and Employment Law, Proposal to Improve the Process bywhich the NLRB Changes its Policies, 1986 New York City Bar Association 883, 883(available in files of the Fordham Law Review).

89. See, e.g., supra, note 43; Subrin, Conserving Energy at the Labor Board: The Casefor Making Rules on Collective Bargaining Units, 32 Lab. L.J. 105 (1981). Judges andeven Board members also have criticized the Board for not making greater use of itsrulemaking powers. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 779, 781(1969) (Harlan & Douglas, JJ., dissenting in separate opinions) (the use of rulemakingwould result in more responsible administrative action); NLRB v. Majestic Weaving Co.,355 F.2d 854, 860 (2d Cir. 1966) (Board should use rulemaking powers to " '[fill] in theinterstices' of regulatory statutes") (quoting SEC v. Chenery Corp., 332 U.S. 194, 202(1947)); St. Francis Hosp., 271 N.L.R.B. 948, 955 (1984) (Dennis, Member, concurring)(if Board were to use its rulemaking powers, there would be more stability in the relevantindustry and less litigation).

90. See, e.g., articles cited supra at note 43; Subrin, supra note 89, at 113 (advocatingcertainty through rulemaking).

91. National Labor Relations Act, ch. 372, § 6, 49 Stat. 449, 452 (1935) (sectionregarding Board's rulemaking power) (amended 1947) (codified at 29 U.S.C. § 156(1982)).

92. 5 U.S.C. §§ 551(4), 551(5), 553 (1982).

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general statement of their basis and purpose.""3 The APA also autho-rizes the Board to proceed by case-by-case adjudication,94 which is whatthe Board historically has preferred.

Over the years, the NLRB has exercised its rulemaking power in sub-stantive areas only to a very limited extent on certain jurisdictional ques-tions." In 1987, however, in what one Board member termed an"historic event,"96 the NLRB, voting three-to-two, decided to engage inrulemaking to determine appropriate bargaining units in the health careindustry. 97

Dr. Bernard Samoff, former Regional Director of NLRB Region Fourin Philadelphia, has asserted that greater use of substantive rulemakingmost likely would help reduce the caseload and thus cut down on thebacklog problem. Dr. Samoff wrote that Board use of rulemaking"should discourage filings and reduce substantially the bulk of thecharges which are withdrawn or dismissed."9' According to Dr. Samoff,"the bulk of the charges trigger a full-blown process. Rulemaking allowsthe staff either to dispose of charges promptly upon ascertaining a fewfacts (that is, commerce jurisdiction, statute of limitations), or to adviseprospective filers that a rule governs their particular situation."99 Dr.Samoff further wrote that rulemaking "should diminish the pervasiverole of lawyers. They would have fewer opportunities and incentives tofile with the hope of discovering factual and legal distinctions."'

In 1985, former Board Member Don Zimmerman made the followingpersuasive argument for rulemaking:

By using rulemaking on a major question of statutory interpretation,the Board would be impelled to focus its attention on the entire spec-trum of interrelated issues. It also would lay down governing rules atone time rather than by the protracted adjudicatory process that oftenleaves management and labor long unenlightened about the applicablestandard of conduct.' 0

In 1984, the House Committee on Government Operations concludedthat rulemaking would be appropriate when the Board, responding to

93. 5 U.S.C. § 553(b), (c) (1982).94. 5 U.S.C. §§ 551(7), 554 (1982).95. See NLRB Rules, 29 C.F.R. §§ 103.1-103.3 (1986) (providing jurisdictional stan-

dards for private colleges and universities and symphony orchestras and stating thatBoard will not assert jurisdiction over dogracing and horseracing industries).

96. Daily Lab. Rep. (BNA) No. 105, at A-5 (June 3, 1987).97. See id; see generally 52 Fed. Reg. 25,142 (1987) (to be codified at 29 C.F.R. pt.

103) (proposed July 2, 1987) (notices on proposed rulemaking by the NLRB in the healthcare industry).

98. Samoff, supra note 43, at 745-46 (footnote omitted).99. Id at 746.

100. d at 748 (footnote omitted).101. Zimmerman, supra note 85, at 7; see also Summers, supra note 43, at 105 ("This

piecemeal process [of case-by-case adjudication] makes perspective difficult, for it tends toobscure the fact that policy is being made and to discourage direct discussion of thewisdom of the policy.") (footnote omitted).

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political changes, "wishes to make substantial changes in the underlyingBoard law in so many areas."' 10 2 The Committee further stated that"[t]he use of rulemaking would greatly speed up the re-evaluation pro-cess, would allow participation by a greater number of parties, and wouldminimize the disruption on the processing of routine cases.' '0°3

The Board generally has resisted substantive rulemaking' ° because ithas perceived a need for maximum flexibility.' The Board traditionallyhas regarded rulemaking as a cumbersome process that would retard theBoard's ability to respond to changing conditions.'0 6 This is especiallytrue because courts normally would enforce Board-promulgated rules,once they were codified, even in situations where the Board had chosento disregard a particular rule. 107

Proponents of case-by-case adjudication wish to preserve the Board'sability to adapt to a continually shifting political climate. 108 They opposeestablishing greater stability in labor law policy because they wish theBoard to continue to be a politically responsive agency. 10 9 At least onecommentator has defended the Board's adjudication approach on theground that it enables the NLRB "to minimize congressional and judicialintervention in its policies and to mitigate the impact of those intrusionsthat do occur."" 0 Moreover, the Supreme Court unanimously has af-firmed the Board's right to proceed through adjudication rather thanrulemaking. 1'

Nevertheless, after over fifty years, the Board should be able to draw

102. H.R. Rep. No. 1141, 98th Cong., 2d Sess. 16 (1984).103. Id.104. Over two decades ago, Professor Cornelius Peck wrote that the Board engaged in

"sub rosa formulation of rules in the guise of ad hoc decisions." Peck, supra note 43, at753. Professor Peck's examples of "sub rosa rulemaking" include the contract bar doc-trine and craft severance in representation cases. Id.

105. See, e.g., Gregory, The National Labor Relations Board and the Politics of LaborLaw, 27 B.C.L. Rev. 39, 46 (1985) ("Board ability to adapt to continually changing laborrelations is the primary benefit of adjudication"); Note, NLRB Rulemaking: PoliticalReality Versus Procedural Fairness, 89 Yale L.J. 982, 987, 990 (1980) (by creating policysolely through adjudication, Board is able to minimize congressional and judicialintervention).

106. See Congressional Oversight of Administrative Agencies (NLRB): Hearings Beforethe Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong.,2d Sess. 1663 (1968) (supplemental NLRB memorandum).

107. As one commentator has written:There are clear indications that when an administrative rule, either substantiveor procedural, is embodied in a regulation, a court will be much less willing tosustain an agency's disregard of that rule, at least in the absence of a satisfac-tory explanation of why the regulation is not controlling. The concept thatregulations 'have the force of law'-the analogy to legislation and to the bindingeffect of the governing statute-appears to have played a significant role.

Shapiro, The Choice of Rulemaking or Adjudication in the Development ofAdministrativePolicy, 78 Harv. L. Rev. 921, 951 (1965) (footnote omitted).

108. Gregory, supra note 105, at 46.109. Id.; Note, supra note 105, at 989.110. Note, supra note 105, at 987, 989-98.111. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 290-95 (1974).


upon its experience and codify at least some of its labor law policy intorules of general application. The current Board is willing to experimentwith rulemaking in the health care field. There should be further discus-sion and dialogue within the labor bar about other specific areas thatshould be targeted for rulemaking.

D. Intracircuit Nonacquiescence

The Board's policy of intracircuit nonacquiescence has angered severalfederal circuit courts in recent years. The term "intracircuit nonacquies-cence" describes "an agency's limitation of a court's ruling or interpreta-tion to the parties before the court and subsequent refusal to apply theruling as binding precedent in factually similar cases arising within thesame circuit.""' 2 Repercussions of the Board's policy of intracircuit non-acquiescence are illustrated by several recent cases.

In Yellow Taxi Co. of Minneapolis," 3 a Board panel, voting two toone, affirmed the decision of the AL, who had ruled that cab driverswho drove under a lease that explicitly defined them as independent con-tractors were employees under the NLRA. The Board panel held thatlessee cab drivers were employees under the NLRA even though in anearlier case in the same circuit, Democratic Union Organizing Committee,Seafarers International Union of North America v. NLRB, 4 the Court ofAppeals for the District of Columbia Circuit had refused to enforce asimilar NLRB holding, and instead had found lessee cab drivers to beindependent contractors. In his dissent to Yellow Taxi Co., Board mem-ber Penello noted that the majority actually had agreed that the facts inYellow Taxi were not materially distinguishable from those present in theearlier case.' 5 Board member Penello therefore argued for dismissal ofthe complaint on the ground that such lessee cab drivers already hadbeen adjudged independent contractors and that the Board should follow

112. Note, Agency Nonacquiescence: Implementation, Justification, and Acceptability,42 Wash. & Lee L. Rev. 1233, 1233-34 (1985) (footnote omitted). For a description ofthe Board's nonacquiescence policy, see Iowa Beef Packers, Inc. and Frank Laird, 144N.L.R.B. 615, 616-17 (1963), and Insurance Agents' Int'l Union, AFL-CIO and the Pru-dential Ins. Co. of Am., 119 N.L.R.B. 768, 773 (1957), rev'd, 260 F.2d 736 (D.C. Cir.1958), aff'd, 361 U.S. 477 (1960). See also Mattson, The United States Circuit Courts andthe NLRB: 'Stare Decisis' Only Applies if the Agency Wins-An Examination of the Doc-trine of 'Nonacquiesence', 53 Okla. B.J. 2561 (1982); Note, Administrative Agency In-tracircuit Nonacquiescence, 85 Colum. L. Rev. 582 (1985) [hereinafter cited as Note,Intracircuit Nonacquiescence].

113. 249 N.L.R.B. 265 (1980), aff'd, 262 N.L.R.B. 702 (1982), enforcement denied,721 F.2d 366 (D.C. Cir. 1983).

114. Local 777, Democratic Union Organizing Comm., Seafarers Int'l Union of NorthAm. v. NLRB, 603 F.2d 862 (D.C. Cir. 1978).

115. Yellow Cab Co., Local 777, Democratic Union Organizing Comm. v. NLRB, 229N.L.R.B. 1329, 1332 (1977) (holding lessee cab drivers to be employees), enforcementdenied sub nom. Local 777, Democratic Union Organizing Comm., Seafarers Int'l Unionof North Am. v. NLRB, 603 F.2d 862 (D.C. Cir. 1978) (holding lessee cab drivers to beindependent contractors).

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the circuit court's ruling. 1 6 Nevertheless, the majority ignored the cir-cuit court's ruling and affirmed the AL's finding that the cab driverswere employees.

After the Board panel's decision in Yellow Taxi, the Court of Appealsfor the District of Columbia Circuit announced its decision in City CabCo. of Orlando, Inc. v. NLRB," 7 in which it distinguished Seafarers onfactual grounds and held the drivers to be statutory employees. In 1982,in light of Orlando, the full Board reconsidered the Board panel's previ-ous decision in Yellow Taxi, and, sua sponte, by a three-to-two vote, is-sued a supplemental decision and order confirming its earlier ruling thatthe lessee taxi drivers in dispute were employees. 18 Citing Orlando, twoBoard members voted to reverse the Board panel's prior finding that thefacts in Yellow Taxi were not materially distinguishable from those inSeafarers.1 9 Taking a different position, Board member Zimmerman,concurring in the result only, wrote a separate opinion disagreeing withthe court's decision in Seafarers.2' The remaining two members dis-sented on the ground that the drivers were independent contractors be-cause the case presented facts indistinguishable from the facts inSeafarers. 2 The employer petitioned for review in the Court of Appealsfor the District of Columbia Circuit, and the Board cross-petitioned forenforcement.

In Yellow Taxi Co. of Minneapolis v. NLRB, 22 the Court of Appeals,in a lengthy opinion with detailed analysis of both controlling and minorfactors, granted the employer's petition and denied enforcement of theBoard's order. The court held that its decision in Seafarers was control-ling and "adopt[ed] by reference the relevant analysis therein.'" 23 Thecourt further stated that "not a single one of the five factors we relied onto distinguish Orlando from Seafarers has any dispositive force, singly orcumulatively, in the present case."' 24 The court then issued this strongwarning:

We admonish the Board to halt its apparently willful defiance of longestablished, controlling judicial precedent in independent contractorcases involving lessee cab drivers. Should the Board continue to act in

116. Yellow Taxi Cab of Minneapolis, 249 N.L.R.B. 265, 267 (1980) (Penello, Mem-ber, dissenting), aff'd, 262 N.L.R.B. 702 (1982), enforcement denied, 721 F.2d 366 (D.C.Cir. 1983).

117. 628 F.2d 261 (D.C. Cir. 1980).118. Yellow Taxi Co. of Minneapolis, 262 N.L.R.B. 702 (1982), enforcement denied,

721 F.2d 366 (D.C. Cir. 1983).119. Id. at 702 n.2.120. Id. at 704-06 (Zimmerman, Member, concurring). Mr. Zimmerman wrote:

"With all due respect, I find that the [court's] analysis and conclusions in Seafarers arenot cognizant of the peculiarities of the taxi industry as they pertain to the employmentrelationship." Id. at 705.

121. Id. at 706-08 (Van De Water, Chairman, and Hunter, Member, dissenting).122. 721 F.2d 366 (D.C. Cir. 1983).123. Id. at 373.124. Id. at 378.

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defiance of well established decisional law of this and other courts, wemay be required to secure adherence to the rule of law by measuresmore direct than refusing to enforce its orders. We acknowledge thatthe Board is not required to conform its rulings to every decision by acourt of appeals and that no absolute rule can be applied to every case.But when the law has been firmly established, as is the applicable lawhere, the Board in our opinion is required to give those courts greaterdeference than the Board did in this case. 25

The court further added: "No court can overlook an agency's defiantrefusal to follow well established law."' 126

Ithaca College v. NLRB 127 demonstrates similar friction between theBoard and the Second Circuit. In Ithaca College a union filed a petitionwith a regional office of the Board seeking certification as collective bar-gaining representative of the full-time and part-time faculty members ofIthaca College.1 2' The regional director ordered an election among allfull-time faculty members.' 29 A three-way election was held and a runoffelection between "no union" and a union was scheduled for September1978. 130

On July 31, 1978, the Court of Appeals for the Second Circuit ren-dered its decision in NLRB v. Yeshiva University,'3 holding that "full-time faculty at Yeshiva University were managerial or supervisory em-ployees under the National Labor Relations Act ... and were thereforeineligible for inclusion in the bargaining unit."13 2 In that decision, thecourt held that "Board precedents which had been routinely applied incases involving faculty members in private institutions of higher learningwere arbitrary and inconsistent with the Act."'' 33

Ithaca College promptly filed a motion for rehearing with the Board,requesting that the record be reopened in light of the Second Circuit'sYeshiva decision. The Regional Director declined on the ground that"'Regional Directors are bound to follow and apply Board rather thancourt precedent, at least until the Supreme Court speaks to the contraryor the Board decides to acquiesce in the decision of the Court of Ap-peals.' "34 "The College's request for review of the Regional Director'sdecision was denied by the Board. . . 'as it raise[d] no substantial issueswarranting review.' ,135 The run-off election was conducted as sched-

125. Id at 383 (footnote omitted).126. Id at 383, 384 n.39.127. 623 F.2d 224 (2d Cir.), cert denied, 449 U.S. 975 (1980).128. Id at 225-26.129. Id at 226.130. Id131. 582 F.2d 686 (2d Cir. 1978), aff'd, 444 U.S. 672 (1980).132. Ithaca College, 623 F.2d at 226 (citing NLRB v. Yeshiva Univ., 582 F.2d 686 (2d

Cir. 1978), aff'd, 444 U.S. 672 (1980)).133. Id134. Id.135. Id

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uled and the union won by a narrow margin. 3 6

The college refused to bargain and the regional director issued an un-fair labor practice complaint.' 37 Ultimately, the Board granted the Gen-eral Counsel's motion for summary judgment on the unfair labor practicecharge, and the college appealed to the Second Circuit.138 Prior to oralargument, the Supreme Court affirmed the Second Circuit's decision inYeshiva. 1

39

In granting the college's petition for review and denying both theunion's petition for review and the Board's cross-petition for enforce-ment, the Second Circuit addressed the Board's nonacquiescence policyas applied to the facts of this case as follows:

Of course, we do not expect the Board or any other litigant to rejoicein all the opinions of this Court. When it disagrees in a particular case,it should seek review in the Supreme Court. During the interim beforeit has sought review or while review is still pending, it would be rea-sonable for the Board to stay its proceedings in another case that ar-guably falls within the precedent of the first one. However, the Boardcannot, as it did here, choose to ignore the decision as if it had no forceor effect. Absent reversal, that decision is the law which the Boardmust follow. The Board cites no contrary authority except its ownconsistent practice of refusing to follow the law of the circuit unless itcoincides with the Board's views. This is intolerable if the rule of law isto prevail.

140

In Allegheny General Hospital v. NLRB,14 1 the Court of Appeals forthe Third Circuit addressed the Board's failure to follow two recent con-trolling decisions by the same circuit even though the Board had "con-ced[ed] the applicability" of that precedent. 42 In condemning theBoard's action, the Third Circuit noted that the facts behind one of theseearlier decisions were "nearly identical to the instant case."' 4 3 In addi-tion, two other circuits had expressly relied on the two controlling ThirdCircuit cases in refusing to enforce Board orders. 144 In declining to fol-low the applicable precedent in the Third Circuit, the Board had madeno attempt to demonstrate how the material facts differed from the factsof the cases in which the rules were made. Rather, it had relied on thesame analysis it had presented previously to the court when those twoprecedential decisions were rendered. 45 In short, the Board's positionbefore the court was that it respectfully disagreed with the relevant hold-

136. Id.137. Id.138. Id. at 227.139. NLRB v. Yeshiva Univ., 444 U.S. 672 (1980).140. 623 F.2d at 228.141. 608 F.2d 965 (3d Cir. 1979).142. Id. at 966.143. Id. at 968.144. Id. at 969.145. Id. at 968.

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ings of the court.'4 6

In response, the circuit court reaffirmed "certain fundamental tenets ofthe doctrine of stare decisis'' 47 and reasserted "the power of the federaljudiciary to interpret statutes enacted by Congress'"

[I]t is in this court by virtue of its responsibility as the statutory courtof review of NLRB orders that Congress has vested a superior powerfor the interpretation of the congressional mandate. Congress has notgiven to the NLRB the power or authority to disagree, respectfully orotherwise, with decisions of this court. For the Board to predicate anorder on its disagreement with this court's interpretation of a statute isfor it to operate outside the law. Such an order will not be enforced. 149

Notwithstanding these criticisms, the current Board has given no indica-tion that it plans to alter its policy of nonacquiescence.11

There are several arguments in favor of the Board's nonacquiescencepolicy. 5 ' The first argument is that the Board administers a nationallabor policy, and it would be awkward for the Board to vary its rulingson interpretations of the Act, depending on where the issue is being liti-gated in a particular case. Therefore, it must be governed only by thestatute and rulings of the Supreme Court, regardless of the circuit courtdecisions.

152

A second argument is that Board acquiescence in adverse circuit courtrulings would too often deny relief to parties whose position is ultimatelyupheld by the Supreme Court. For example, in Charles D. BonannoLinen Service, Inc. v. NLRB, 53 the Supreme Court sustained a Board

146. Id.147. Id. at 969.148. Id.149. Id. at 970 (citation omitted); see also Enerhaul, Inc. v. NLRB, 710 F.2d 748, 751

(1 lth Cir. 1983) (court awarded legal fees to employer under Equal Access to Justice Actand rejected NLRB's contention that agency has substantial justification for its position,stating that "[it does] not think that Congress ... intended to sanction the NLRB'sreliance on a legal theory that has been clearly and repeatedly rejected by this Court").

150. According to former Board member Don Zimmerman:The Board's refusal to have its case dispositions determined-as opposed toinfluenced-by a rejection of its position in a particular circuit goes back to thebeginning of the Act's administration. In nearly a half century, neither Con-gress nor the Supreme Court has commented adversely on the Board's view thatit administers a single statute on a nationwide basis, and must be governed bythe statute and by authoritative Supreme Court rulings regardless of circuitcourt decisions.

Zimmerman, supra note 85, at 3.151. See, e.g., Zimmerman, supra note 85, at 2-6; Ferguson, Remarks on NLRB r. the

Courts, Daily Lab. Rep. (BNA) No. 117, at D-4 (June 17, 1982).152. One attorney has written that "[a]Ithough the Board relies on the general notion

of a uniform national labor policy, there exists a separate, yet unspoken justification forthe nonacquiescence doctrine. The NLRB appears to believe that nonacquiescence isjustified, at least in part, because of the Board's expertise in labor matters." Ferguson,supra note 151, at D-4.

153. 454 U.S. 404, 406 (1982); see also Ford Motor Co. v. NLRB, 441 U.S. 488, 493n.6 (1979) (sustaining Board position previously rejected by at least two circuit courts).

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position that previously had been rejected by five circuit courts. 54

Another argument is that the NLRA's liberal venue provisions make itimpossible for an agency to predict the venue that will be chosen for thelitigation.' 55 Defenders of intracircuit nonacquiescence assert that sincethe Board is administering a national labor policy under the Act, it can-not reasonably be expected to render different interpretations of the sameprovision, particularly when it cannot know with certainty the judicialforum where its decision will be reviewed.

To be sure, the question of whether the Board could ascertain the fo-rum for judicial review could be debated on a case-by-case basis. Forexample, in Ithaca College v. NLRB,'56 the Board argued to the SecondCircuit that it was not unreasonable to deny the college a hearing follow-ing the Second Circuit's Yeshiva decision because one of the partiesmight have sought judicial review before the Court of Appeals for theDistrict of Columbia Circuit rather than in the Second Circuit. 157 Inrejecting this argument, the Second Circuit found in part that if theunion had filed for review in the District of Columbia Circuit, the collegewould have moved for a transfer to the Second Circuit and "the transferwould have assuredly occurred."' 58 Though these "facts" may havebeen clear to the Second Circuit in the Yeshiva case, there undoubtedlywould be a variety of circumstances when the forum for judicial reviewcould not be ascertained by the Board. Moreover, so long as the Actpermits the opportunity for forum shopping, the Board generally cannot"know" in which of these forums its decision will be reviewed.

The wisdom of the Board's policy on intracircuit nonacquiescenceplainly should be the subject of a dialogue on the Act. 'I9 After reviewingthe Board's conduct in Yellow Taxi, Ithaca College and Allegheny Gen-eral Hospital, we believe that nonacquiescence probably has gone too far.There should be certain agreed-upon circumstances under which theBoard will acquiesce in the law of the circuit. For example, the Boardprobably should defer to controlling circuit court precedent when thefacts in the Board case are not materially different from those in the casealready decided by the circuit court. 160 The argument for acquiescencebecomes even stronger when there is more than one recent decision bythe circuit court on point, when other circuits have relied on the circuitcourt's decision in denying enforcement of Board orders, and when the

154. 454 U.S. at 406 n.2.155. The Act allows a plaintiff a choice of three forums: (1) the situs of the unfair

labor practice, (2) the District of Columbia, or (3) any circuit where the aggrieved person"resides or transacts business." 29 U.S.C. § 160(e), (b) (1985).

156. 623 F.2d 224 (2d Cir.), cert. denied, 449 U.S. 975 (1980).157. Id. at 227.158. Id.159. At least one commentator has proposed that Congress prohibit agency nonacqui-

escence within a circuit. See Note, Intracircuit Nonacquiescence, supra note 112, at 607.160. See Yellow Taxi Co. v. NLRB, 721 F.2d 366, 367 (D.C. Cir. 1983); Ithaca Col-

lege v. NLRB, 623 F.2d 224, 226 (2d Cir. 1980).

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Board makes no effort to distinguish the case being reviewed from thecases already decided by the circuit court. 6 ' Nonacquiescence alsoseems inappropriate where the initial precedent-setting case was heard bythe Circuit sitting en banc. In these kinds of situations, it would be un-fair to force parties to spend the time and incur the expense of litigationto obtain a result based on an interpretation of the law that the relevantcircuit court already has made. 162 Parties forced to litigate under thesecircumstances probably should be entitled to attorney's fees and costs. 6 3

If the Board does not approve of a circuit court decision, it theoreti-cally can seek judicial review. As a practical matter, however, the Boardmay not be able to obtain review because the Solicitor General may de-cline a Board request to petition for certiorari"6 in the absence of a con-flict among the circuits. These practical limitations on the Board'sability to obtain judicial review of adverse circuit court decisions shouldbe considered in formulating any proposal for modifying the Board's pol-icy of intracircuit nonacquiescence. The Board also should have someflexibility in deciding which case, among several, ought to be the subjectof Supreme Court review.

In any event, it may be time to abolish forum shopping. The Actcould be amended to limit judicial review to the circuit in which theunfair labor practice occurs. This would eliminate the uncertainty aboutwhere judicial review will occur and make it easier for the Board to ac-quiesce in the law of the circuit, under appropriate circumstances, with-out prejudice to the Board's right to interpret the statute differently inother circuits where the law is not settled.

E. Whether to Create a Federal Labor Court

Some commentators have proposed the creation of a federal laborcourt' 65 or the transfer of jurisdiction over unfair labor practices directlyto a special labor division of the federal district courts. 16 6 Although weare not convinced that labor law cases warrant a special court devotedexclusively to labor disputes, these proposals are at least worthy of dis-cussion and consideration. 67

161. See Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 969 (3d Cir. 1979).162. See Note, Intracircuit Nonacquiescence, supra note 112, at 606; cf. Enerhaul, Inc.

v. NLRB, 710 F.2d 748, 751 (1 1th Cir. 1983) (awarding attorney's fees against NLRB forhaving litigated an issue court had previously determined).

163. See Note, Intracircuit Nonacquiescence, supra note 112, at 608.164. 28 U.S.C. § 516 (1982).165. Bartosic, supra note 27; Morris, supra note 42; see also Shutkin, One Nation Indi-

visible-A Plea for a United States Court of Labor Relations, 20 Lab. L.J. 94, 97 (1969)(urging establishment of labor court for each circuit).

166. Farmer, supra note 39, at 11.167. There plainly are enough labor cases litigated at the appellate level to justify con-

sideration of a labor court. In fiscal year ("FY") 1986, 197 cases were decided by federalcourts of appeals as compared to 188 cases so decided in FY 1985. In FY 1986, 1 crimi-nal and 25 civil contempt proceedings were instituted as compared to 31 civil proceedingsin FY 1985. Additionally, in FY 1986, the Board's Special Litigation Branch filed 73

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Professor Florian Bartosic has called for the creation of a UnitedStates Labor Court that would replace the circuit courts of appeals inreviewing Board decisions. 6 This new federal court would be estab-lished under Article III of the Constitution,169 and consequently judgeswould be appointed by the President, subject to approval by the Senate,and would have life tenure. 7 ' Ideally, the judges appointed to such acourt would have practical expertise in labor law. Under ProfessorBartosic's proposal, the Labor Court would have a trial division to hearsection 301,' fair representation and section 303172 cases, and Boardapplications for injunctions. The appellate division of the court wouldhear appeals from the trial division and the Board.'73 Eventually, underProfessor Bartosic's plan, the Equal Employment Opportunity Commis-sion ("EEOC") would be given enforcement powers like those of theNLRB, and the appellate part of the proposed labor court would reviewEEOC cases as well. 174

One advantage of such a court could be to end the Board's nonacquies-cence policy, because the rationale for such a policy would no longerapply. A second advantage might be the efficiency of having labor-man-agement issues decided by one intermediate appellate court with exper-tise in labor law. Members of one appellate court, however, probablywould lack the diversity of views that necessarily exists today in theeleven circuit courts widely dispersed throughout the different regions ofthe United States. In addition, the perspective of persons who are notlabor specialists sitting as circuit court judges may have a creative orameliorating effect on labor decisions that would be lost if only laborlawyers were appointed to a single labor court.

Professor Charles Morris has proposed the creation of an Article III

briefs: 43 district court briefs, 5 bankruptcy court briefs and 25 appellate court briefs. R.Collyer, Summary of Operations Fiscal Year 1986, Daily Lab. Rep. (BNA) No. 38, at D- I(Feb. 27, 1987). Moreover, if cases arising under Title VII of the Civil Rights Act of1964 were added, there would be many additional cases for a labor court to hear.

168. Bartosic, supra note 27, at 666169. Although some might prefer an Article I court with prescribed terms for judges,

the creation of such a court could create a serious constitutional question if review fromthe new court were directly to the Supreme Court. As Professor Bartosic writes, "[t]hisproposal could violate the proscription against congressional enlargement of the SupremeCourt's original jurisdiction since that Court would be the first article III court that couldhear the case." Id. at 666 n.127. See generally C. Wright, Law of Federal Courts §§ 10,11 (4th ed. 1983) (discussing congressional control of jurisdiction and the creation oflegislative courts).

170. Examples of specialty courts established under Article III are the Court of Cus-toms and Patent Appeals, see Brenner v. Manson, 383 U.S. 519, 526 (1966); Glidden Co.v. Zdanok, 370 U.S. 530 (1962), and the Court of International Trade, see Customs CourtAct, § 101, 94 Stat. 1727 (1980) (amending 28 U.S.C. § 251).

171. Labor Management Relations Act § 301, 29 U.S.C. § 185 (1982) (suits for viola-tion of labor contracts).

172. Id. § 303, 29 U.S.C. § 187 (1982) (suits against unions for damages arising out ofunlawful strikes).

173. Bartosic, supra note 27, at 667.174. Id. at 670.

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labor court to achieve a "unitary system" for the administration and en-forcement of federal private sector labor law.'17

- Professor Morris' sys-tem "would consist of a constitutional court with jurisdiction over theenforcement of the substantive rights and duties contained in the Labor-Management Relations Act, the Railway Labor Act, Title VII of the1964 Civil Rights Act, and perhaps other federal labor laws [includingthe Employment Retirement Income Security Act (ERISA)]."'' 76

Professor Morris would complement this judicial structure with a re-vised administrative structure combining the personnel and functions ofthe NLRB, the EEOC and the National Mediation Board.'7 7 The pow-ers of the General Counsel of the NLRB would be expanded to includeauthority to investigate complaints and prosecute actions under the Rail-way Labor Act and Title VII as well as the NLRA. "" The GeneralCounsel would either dismiss the charge or file a complaint in the laborcourt. In the event of dismissal, an individual could file and process hisor her own action. 179 Appeals from decisions of Professor Morris' laborcourt would be to the eleven circuit courts of appeals.' 0

In 1985, Guy Farmer, former NLRB Chairman, proposed transferringjurisdiction over unfair labor practices from the NLRB to a labor divi-sion of each district court. 18 ' He would give authority to a special divi-sion of the United States Attorney's Office to issue or refuse to issuecomplaints.' 82 He also would eliminate jury trials and discovery.' TheBoard would be retained only to handle and supervise election cases."Board decisions on election cases also would be subject to review by theLabor Division of the United States District Courts."8 5 The ALJs wouldbe eliminated and the Office of the General Counsel would beabolished.' 86

In Guy Farmer's judgment, there is a great need to depoliticize theBoard, hence his proposal to shift decision-making power away from theBoard and into the courts. He feels strongly that "[a]ll reason and logicleads to the conclusion that the best, if not the only, answer is to placethe administration of the Act in the court system to ensure that its vital

175. Morris, supra note 42, at 497-99.176. Id at 498.177. Id at 498-99.178. Id. at 503.179. Id at 503; see also Vehar, Labor Law Reform: Do Labor Organizations Hare

Equal Access to the System?, 62 Den. U.L. Rev. 571, 586-89 (1985) (proposing, amongother things, that individuals be granted a private right of action in court for all unfairlabor practices).

180. Morris, supra note 174, at 505.181. Farmer, supra note 39.182. Id. at 11.183. Id184. Id at 10.185. Id at 11.186. Id

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purposes be fulfilled." 8 7

Opponents of his proposal, including Arnold Ordman, former GeneralCounsel to the Board, argue that (1) the delay problem "would be se-verely aggravated if the Board's substantial case load were superimposedon the heavy dockets which the courts already carry"' 8 and (2) "a dis-trict attorney possesses no special attributes to assure superior perform-ance in this area." '89 We would hope that there is a better way toremedy existing problems than by stripping the Board of its power overunfair labor practices.

CONCLUSION

Given the dissatisfaction of unions and other critics with the presentBoard and Act and the number of ideas for change that have been offeredby various commentators, it is time for a tripartite conference to examinethe Act and its future. As a matter of sound public policy, it makes sensefor the labor-management community to meet and confer on the Act as awhole, outside of the political arena.

Structural changes in the Act, as well as changes in how it is enforced,should be instituted to make the Act more effective. Some of the sugges-tions discussed in this Article could be implemented within the frame-work of existing law. Legislation, however, may be needed to fosterchanges on case backlog, rulemaking, and intracircuit nonacquiescence,given the longstanding record of the Board on these issues. Seriousthought also should be given to whether it is desirable for new Boards tobe as responsive as past Boards have been to political change in the exec-utive branch.

More than fifty years have passed, and the Act remains on the books.Though some have called for its repeal, there can be no serious questionabout its survival. The Act, however, can be adjusted to better achieveits potential. If at all possible, the changes should derive from a consen-sus of labor and management after a dialogue held on neutral and re-spectable grounds made available under the auspices of the AmericanBar Association.

187. Id. at 14.188. Ordman, Fifty Years of the NLRA: An Overview, 88 W. Va. L. Rev. 15, 21 (1985).189. Id.

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Documents

The National Labor Relations Act at the Crossroads